Thursday, May 03, 2012
Courts - “Lasting credibility on an issue such as judicial restraint requires us to practice it, as the old saying goes, when the shoe pinches as well as when it comforts.”
Great quote from "J. Harvie Wilkinson, the federal appeals judge from Charlottesville, Va." in this WSJ LAW Blog entry by Jess Bravin.
Law - "Westlaw To End Free Printing For Law Schools"
That is the headline to this entry in the Law Librarian Blog.
The entry links to an equally interesting earlier entry, headed "Bloomberg Law Makes It's Push Into Law Schools."
Ind. Courts - "IndyCar tabs retired Indiana Supreme Court justice to hear Chevrolet appeal"
From the AP, via the Washington Post, some quotes from this unattributed story:
INDIANAPOLIS — IndyCar has tapped a retired Indiana Supreme Court judge to hear Chevrolet’s final appeal of an engine change the series allowed Honda. * * *
Chevrolet’s final appeal will be heard next Wednesday in Indianapolis by retired Indiana Supreme Court Justice Theodore R. Boehm, who retired in 2010. * * *
IndyCar president of operations Brian Barnhart could have heard the appeal himself, but instead elected to choose an independent official. Boehm’s decision will be considered final and binding.
Boehm has a sports background. He was chairman and CEO of the organizing committee for the 1987 Pan American Games in Indianapolis, and was the first president and CEO of the Indiana Sports Corp.
Vacancy on Supreme Court 2012 - Not "lost to history" after all
In this May 1st entry I wrote:
Actually, J. Massa's first appearance was in the oral argument held at Martin University on April 20th, as I noted at the time. Unfortunately, that oral argument was not recorded and so has been lost to history.But I have just received this note:
Marcia,The case is Michael J. Lock v. State of Indiana, the issue involved whether a Yamaha Zuma was a "motor vehicle" under the statute. Here is the videocast.
We have now posted the oral argument from Martin University. It takes us a little more time than usual to post arguments when the Court goes on the road. We are very appreciative of Martin University for getting us this video.
Indiana Supreme Court
Public Information Officer
THIS was Justice Mark Massa's first oral argument as a member of the Supreme Court of the State of Indiana.
Courts - "Recording Police v. Recording Citizens Debated in 7th Circuit and in Illinois Legislature"
On Sept. 14, 2011 the ILB posted this entry on the 7th Circuit oral argument, held the previous day, in ACLU v. Alvarez. Despite the 7th Circuit's generally fast turn-around times, this opinion has yet to issue.
Last weekend the Indiana Society of Professional Journalists gave its annual awards. Looking through the 46-page list of awards (with an amazing number going to Angie's List!), my eyes stopped at p. 23:
Category 33B: Continuing Coverage, Outside Indianapolis market TV stationsI located the over 17-minute story on YouTube. It is definitely worth watching, although IMHO could stand some shortening.
1st Place: Patrick Fazio, Bob Bruce, Tony Grant
“Recording Police Illegal”
Judges’ Comments: The kind of story we should be doing more of. Extensive, thorough coverage of an underreported topic.
The MLRC MediaLawLetter has this 2-page article in its October 2011 issue. A quote:
During what has now become a highly publicized exchange [ILB - eg this entry], Judge Posner immediately interrupted the argument with “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.” ACLU attorney Richard O’Brien countered, “Is that a bad thing, your honor?” To which Judge Posner stated, “Yes, it is a bad thing. There is such a thing as privacy.” (Oral Argument at 8:04 to 8:15). * * *Here is the 9/13/2011 7th Circuit oral argument.
Judge David F. Hamilton pressed Assistant State’s Attorney Jim Pullos to articulate the “legitimate privacy interest in conversations that are going on in public with a public official that are audible to passerby.” The judge also questioned him about the police exemption to the Act whereby they are permitted to record others without their consent under certain circumstances.
Judge Diane S. Sikes also questioned Mr. Pullos about another so-called exemption to the Act allowing journalists to make such recordings without permission in light of the broad ruling in Glik that recognized citizen-journalists.
Finally, Robyn Hagan Cain posted an entry headed "Recording Police v. Recording Citizens Debated in Courts, IL Legislature," in the FindLaw 7th Circuit News and Information Blog.
Ind. Decisions - "Lawyer Gets Prison Time For Cheating Alzheimer's Patient: Stacy H. Sheedy Stole Thousands"
INDIANAPOLIS -- An Indianapolis lawyer who cheated an Alzheimer's patient out of tens of thousands of dollars and drained another family's trust was sentenced Thursday to eight years in prison.
Stacy H. Sheedy, 51, who is also an accountant, pleaded guilty to two counts of theft.
She apologized in court, saying she knows she shamed herself and all those in her profession. * * *
During the course of the investigation, investigators also examined Sheedy's role as trustee of a separate family trust, for which she had served as trustee since November 2007.
A brokerage account within the trust started at $501,000 when Sheedy became trustee, but was drained to only $168 during her tenure, investigators said.
When family members asked why they were no longer receiving brokerage statements from the account, Sheedy told them she had invested the funds in a bond fund and periodically sent them statements from the Wealth Council Indiana Small Cap Bond fund, investigators said.
According to the Indiana Secretary of State's Office, no such fund exists.
Investigators said Sheedy made unauthorized withdrawals of $412,500 from the trust account.
Ind. Decisions - Court of Appeals issues 2 today (and 2 NFP)
For publication opinions today (2):
In M.O. v. Indiana Dept. of Insurance, Indiana Patient's Compensation Fund, a 12-page opinion, Sr. Judge Sharpnack writes:
This case presents issues of which of two statutes sets the interest rate on payments by the Indiana Department of Insurance Patient’s Compensation Fund (“the Fund”) to successful malpractice claimants and of when interest begins to accrue on payments due. The trial court concluded that Indiana Code section 24-4.6-1-101 (1993), with its eight percent rate, applied and that interest began to accrue on the fifteenth day of the month following the end of the claim period in which the claim was filed with the Fund. We agree and affirm.In Meschach Berry v. State of Indiana, an 8-page opinion, Judge Riley writes:
Appellant-Defendant, Meschach Berry (Berry), appeals his conviction for possession of marijuana, a Class A misdemeanor, Indiana Code § 35-48-4-11(1). We reverse. * * *NFP civil opinions today (0):
A valid inventory search is a “warrantless search of a lawfully impounded automobile if the search is designed to produce an inventory of the vehicle’s contents.” * * *
Berry contends that Officer Sherrell’s decision to impound his vehicle was unreasonable because no statute expressly required his vehicle to be impounded and there was no community caretaking function justification present. * * *
Here, Berry argues that the State provided no evidence that Officer Sherrell’s decision to impound Berry’s vehicle was consistent with standard procedures followed by the Indianapolis Metropolitan Police Department. We agree. Officer Sherrell testified that he chose to impound Berry’s vehicle because Berry “didn’t have a valid license and he didn’t have proof of insurance for the vehicle.” * * * Consequently, we conclude that the State failed to prove that an exception to the warrant requirement existed at the time of the inventory search of Berry’s car.
CONCLUSION. Based on the foregoing, we conclude that the search of Berry’s vehicle violated the Fourth Amendment of the United States Constitution. Therefore, the trial court abused its discretion by admitting evidence obtained through an inventory search of Berry’s automobile. Reversed.
NFP criminal opinions today (2):
Ind. Gov't. - Still more on: "Clark airport loses eminent domain lawsuit, owes $600,000"
Clark County entered the suit when John W. Mead, attorney for Margaret Dreyer, the property owner, filed a motion against the county in order to receive the remaining money owed to his client. The Clark County Board of Aviation Commissioners had already paid Dreyer $203,605 for a portion of the property, leaving a $661,395 remainder.
Clark County Attorney Greg Fifer argued Wednesday that the trial court, which was Clark County Circuit Court No. 1, lacked “subject matter jurisdiction” to hear the case. He explained that the court should not have heard the case because a written exception to the appraisals was not filed within 20 days by Dreyer. He continued that the first appraisal the Dreyers received was on May 7, 2009, by certified mail — which is a requirement under state statute.
“We think the date exceptions could have been filed is no later than May 27 ,” Fifer said.
The exception was not filed by Mead until July 7, 2009, according to Clark County Court records.
“This case was totally over at that point,” Fifer said.
But the county did not enter the legal proceedings until the certified judgment was entered to claim the $661,395.
Clark County Circuit Court No. 2 Judge Jerry Jacobi questioned the timing of the county raising the issue that the original exception was not timely and asked why the county had not intervened in the suit earlier.
“At what point is it too late?” he asked Fifer.
Fifer argued that under state law, it’s never too late to raise the question of whether or not the court had jurisdiction to hear the case.
“I won’t rule until you find such a case,” Jacobi said, in response to Fifer.
But Mead argued that the Dreyers objected to the appraisal in March 2009, before the official document was ever filed.
“That ... constitutes a valid exception,” he said.
In addition, Mead argued that the first appraisal was set aside by Clark County Circuit Court No. 1 Judge Dan Moore, a second appraisal was ordered in September and a certified letter of that appraisal amount was never sent to the Dreyers.
“The time period never began to run,” he said.
Mead added that the county was not timely in entering the suit.
“The jurisdictional question had to be filed at the earliest opportunity, which would’ve been in 2009,” he said. “It’s not when Mr. Fifer and the county finds out it has a judgment entered against it for $865,000.”
Ind. Law - "Lawmakers didn’t foresee EACS dilemma"
Today Niki Kelly and Devon Haynie of the Fort Wayne Journal Gazette report in a lengthy story that begins:
St. Joseph Elementary, a five-classroom school in Monroeville, turns 100 this year. And members of the parish that manages the school had a grand plan to mark the occasion.The story follows on another FWJG story, from December 19, 2011, where according to a press release: "the Indiana Public Charter Schools Association (IPCSA), today announced that the IPCSA has filed a lawsuit to stop a transfer of title of a vacant school building to the Fort Wayne-Allen County Airport Authority ("Airport Authority") because it violates a new state law." See also this Dec. 20th entry.
Last summer, the Rev. Lourdino Fernandes learned that a former elementary school in the same neighborhood was up for sale. The idea of buying the larger, more modern school was lofty, he thought, but just the kind of goal needed to re-energize the parish.
He pitched it. And soon St. Rose of Lima Church members, many of whom had dug deep into their pockets, raised about $520,000 to buy and maintain Monroeville Elementary from East Allen County Schools.
“People who couldn’t pay any money before, suddenly they found money to pay,” Fernandes said. In mid-April, the East Allen board agreed to sell the closed school to the Fort Wayne-South Bend Catholic Diocese for $189,000. But now the deal, which has not yet closed, may fall through.
The Indiana Public Charter Schools Association, the state’s leading pro-charter group, is asking both parties to back out, alleging the sale violates state law. The problem arises from a 2011 law passed by the General Assembly making unused school buildings available for possible charter tenants for $1.
GOP House Speaker Brian Bosma authored the legislation and said Tuesday the intent was to address situations in which districts were purposely refusing to sell buildings to charter schools to avoid competition. Only anecdotal evidence was offered in hearings on the legislation, and it focused on urban areas such as Indianapolis and Gary.
The law that eventually passed requires districts to put unused buildings on a list with the state Department of Education so that anyone interested in creating a charter school can find a possible location.
A district can reclaim the school on the list if it wants to use it for classroom instruction again. Other than that, though, the building has to sit unused for four years before it can be sold.
Legislators clearly didn’t envision a case such as in Monroeville, where no charter school has expressed interest in the rural Allen County town of 1,235.
“Everyone is extremely upset, they are extremely disappointed,” said Lori Wagner, a member of the parish. “The school has been empty for a year and nobody has put forth any interest. We’re pretty upset they are trying to do this on a technicality and not on a practicality.”
Stage Collapse - More on: Emergency rule approved this morning
Updating yesterday's ILB entry, Maureen Hayden of CNHI had a long story yesterday in the New Albany News & Tribune headed "State approves new emergency stage rules: Some worry about financial impact on small town festivals." Some quotes:
The new emergency rules require many events that are open to the public to have engineer-approved plans for their stage rigging systems, along with emergency evacuation plans. The rules also require event organizers to have the stage rigging inspected after it’s erected and to maintain it to ensure its safety. The stage rigging will have to meet certain standards for high winds, snow, and seismic activity.
Officially, the emergency rules go into effect today. But the Department of Homeland Security and the State Fire Marshal’s office began inspecting such structures in April, in anticipation of the new rules.
Tami Ehinger, chairwoman of the Orleans Dogwood Festival, said she was surprised when the state temporarily shut down her festival stage Tuesday after she couldn’t supply the state inspector with the detailed site plans that are now required under the new rules. At the time, the new rules hadn’t been published or even approved.
The State Fire Marshal’s office agreed to contact the engineering firm that worked with the contractor that put up the stage rigging. They got what they needed, then gave Ehinger the clearance she needed.
“We weren’t trying to avoid compliance,” she said. “We were not even aware of what needed to do.”
Her concern now is that the new rules that require engineer-approved plans and inspections will increase the festival’s costs in coming years. “We worried that our stage costs are going to go up,” she said. “We’re a small festival on a small budget.”
The temporary rules approved Wednesday are in effect until January 2014. The Indiana General Assembly is expected to adopt more permanent rules after a legislative study committee looks at the issue this summer.
David Hannum, a Terre Haute engineer and head of the Fire and Building Safety Commission charged with developing the emergency rules, said there are exemptions in the emergency rules that may help minimize the costs for some small fairs and festivals.
For example, a small stage with overhead rigging less than 20 feet tall may be exempt if there is a buffer zone around the stage that extends 8 feet beyond the height of the rigging to protect fans in case of a collapse.
Hannum said the new rules may need to modified after the legislative study committee looks at how they were enforced this summer. “The committee is going to look at it to see if this is Band-aid or a solution,” Hannum said.
Ind. Decisions - "Jury rules in favor of Alcoa in $12 million lawsuit over disposal of industrial waste"
That is the headline to a long story yesterday in the Evansville Courier & Press, reported by Mark Wilson. Some quotes:
EVANSVILLE — Jurors ruled in favor of Alcoa in a $12 million lawsuit filed by a Chandler, Ind., couple who claimed that waste the company disposed of at a former Warrick County coal mine caused the rare cancer of a former miner there.
The six jurors deliberated for about two hours Tuesday afternoon following a trial that lasted more than two weeks. Although the lawsuit was filed in Warrick County, it went to trial in Vanderburgh County with Circuit Court Judge Carl Heldt presiding as special judge.
Filed in January 2006, the lawsuit charged Bil and Kim Musgrave were exposed to the chemicals through years of recreating at the mine, causing his cancer of the bile duct, which is a rare form of liver cancer. * * *
Attorney Peter Racher, who led the Musgraves’ team of lawyers, declined to comment on the verdict. He is representing a similar lawsuit in Warrick Circuit Court on behalf of more than 40 people, some of whom were witnesses in the Musgraves’ trial.